What is the court’s power to deny an application for Certificate of Appointment (probate)?

Where do you draw the line when determining whether a prospective estate trustee has the moral standing to fulfill the responsibility of the role?

 The Ontario Court of Appeal recently reviewed and upheld Justice Mew’s decision at the Superior Court of Justice, which explored this issue (James Estate (Re), 2024 ONCA 623).  

Overview

Robert Emanuel James executed a will in September 2022, leaving his estate to his four children and his common-law spouse. His will named his friend, Eleanor, as the estate trustee.

Promptly after Mr. James’ death in April 2023, Eleanor renounced her role. Shortly thereafter, the beneficiaries all agreed to appoint William John Franklin Bishop as the new estate trustee. But what seemed like a simple solution quickly raised concerns surrounding the balance between respecting the wishes of the beneficiaries, and maintaining the integrity of the legal system.

Disbarment

The appellant was disbarred in 2013 due to his involvement in fraudulent mortgage transactions. This past professional misconduct led to serious concerns about whether he should be trusted to manage the estate of Mr. James.

While the fact that the appellant had been disbarred many years earlier may have been overlooked by some, the court had a duty to assess whether his history of professional misconduct, the fact that he wasn’t named an estate trustee in the will, and his apparent involvement in the estate planning process would undermine the integrity of the estate administration, and bring the administration of justice into disrepute.

Not Appointed in the Will? What if the Beneficiaries agree?

Although the appellant was not named as an estate trustee in Mr. James’ will, the beneficiaries supported his appointment. This situation raises an important question: Should the court appoint someone not named in the will just because the beneficiaries agree, and regardless of other circumstances?

While the beneficiaries' consent may seem sufficient, the court is tasked with more than simply rubber-stamping their choice. It must consider whether the proposed trustee is truly fit to carry out their duties, and whether there are any concerns regarding their qualifications.

Justice Mew’s Decision

Rule 74.14(4) of the Rules of Civil Procedure tasks a judge with determining whether a Certificate of Appointment should be issued when the Registrar deems it necessary. 

The Estates Act s. 29 gives the court discretion in granting or refusing to grant a Certificate. 

Upon review, Justice Mew expressed concerns about the appellant’s disbarment, the fact he was not named an estate trustee in the will, and his apparent and undisputed involvement in the estate planning process of the deceased, which suggested that he may have been practicing law without a license. He found that these concerns cast doubt and were enough to outweigh the beneficiaries’ consent. Justice Mew refused the appointment, ultimately determining that the court’s duty to uphold the integrity of the legal process must come first, even when the beneficiaries have consented.

The Court of Appeal upheld Justice Mew’s decision. Justice Gomery of the ONCA opined that this discretion may be exercised even if the application is unopposed, in keeping with the court’s gatekeeping and oversight function with respect to the appointment of estate trustees.

Conclusion

While the consent of the beneficiaries is important, the court must ensure that the individual chosen to manage the estate meets the necessary standards of responsibility, professionalism and integrity; qualities which many might agree that a disbarred lawyer is not defined by.  Justice Mew’s decision serves as a reminder that the court’s duty is to protect not only the interests of the beneficiaries, but also the public’s trust in the administration of justice.